MAY 10 — Malaysia is one of the 47 members sitting in the United
Nations Human Rights Council (HRC) for the second term covering
2010-2013. When our Foreign Affairs Minister, Dato’ Sri Anifah Aman
opined that there is no necessity for outsiders, in this context, the
Special Rapporteur on the Promotion and Protection of the Right to
Freedom of Opinion and Expression, Frank William La Rue to investigate
the Bersih 3.0 rally that took place on April 28. He is stretching the
truth way a little because, I quote, “We are a sovereign nation. We are
capable of doing our own impartial investigation and we have faith in
the authorities and the police. For responsible Malaysians, I don’t
think this is an issue. We don’t need someone to investigate what
transpired in our country. We have seen it on television and there are
people who were actually on the spot who witnessed what happened.”
He also added that “The government is going to appoint a panel to
investigate; therefore I do not see the necessity. I mean, maybe it’s
possible, but I do not see the necessity for any outside organisation to
determine whether we are free or fair.”
In declaring its intention for its candidature, the Malaysian
government circulated a memorandum dated March 9, 2010, outlining its
human rights record and its pledges and voluntary commitments. As the
member of the HRC, Malaysia's voluntary commitments and pledges include
"deepening and widening our cooperation with and support for the work of
various UN actors and mechanisms involved in the promotion and
protection of human rights such as the ... Special Procedures of the
HRC," which includes Special Rapporteurs, Working Groups, and
Independent Experts.
If we take a peek to the UN General Assembly resolution A/RES/60/251,
it states clearly that members of the HRC shall uphold the highest
standards in the promotion and protection of human rights; fully
cooperate with the HRC; and be reviewed under the Universal Periodic
Review (UPR) mechanism during their term.
However, the way Anifah Aman described the Special Rapporteur and the
HRC which we are a member, as the “outsider” and the “outside
organisation” is detrimental to the country. It doesn’t reflect the
commitments that the government has promised to the HRC and it is
obviously just another diplomatic exercise.
In order to understand further about the Special Rapporteurs
mechanism, we should understand that Special Procedures is the general
name given to the mechanisms established by the HRC to address either
specific country situations or thematic issues in all parts of the
world. Special Procedures are either an individual (called “Special
Rapporteur”, “Special Representative” or “Independent Expert”) or a
Working Group usually composed of five members (one from each region).
Before issuing his defensive statement, the Foreign Affairs Minister
was either not aware or simply ignorance of the fact that Malaysia has
made its commitments to the HRC on providing cooperation to the
mechanisms introduced by the HRC.
In 1998, Malaysia has in fact received the country visit by the
former Special Rapporteur on the Promotion and Protection of the Right
to Freedom of Opinion and Expression, Abid Hussain. In its Resolution
1998/42, Abid Hussain, during his visit to Malaysia from October 20-24,
1998 has made the below recommendations to Malaysia followed his
observations, I quote from the said report:
1. The government is strongly encouraged to consider taking
further steps to fully guarantee the protection of the right to freedom
of opinion and expression. These steps should include the repeal of the
ISA and the consideration of other means, in accordance with
international standards, to protect its national security. It should
furthermore include amendments to some of the current national
legislation, in particular the Printing Presses and Publication Act, the
Sedition Act and the Official Secrets Act, to facilitate the exercise
of the right to freedom of opinion and expression in a more transparent
and judicious manner.
2. It is recommended that the government review cases of persons who
are being held for having exercised their right to freedom of opinion
and expression with a view to releasing them. The cases of all persons
who have been tried in court and convicted in application of laws or
regulations incompatible with the protection of the right to freedom of
opinion and expression, as affirmed in the Universal Declaration on
Human Rights, should also be reviewed.
3. The Special Rapporteur urges the government of Malaysia to
repeal the regulations on annual licensing of newspapers in order to
ensure that any registration requirements serve an administrative
purpose only and are not used to impose restrictions on the media
outside the scope of article 19 of the Universal Declaration on Human
Rights.
4. The Special Rapporteur strongly encourages the government to
take all necessary steps to ensure the independence of the media,
including safeguards against any interference by political interests.
The establishment of an independent media council could be a first step.
Initiatives on the part of media professionals to establish independent
and voluntary professional associations should also be encouraged, in
particular with regard to developing methods and systems of voluntary
self-regulation such as codes of ethics for the profession, training
programmes which address the rights and responsibilities of the media
and the Government, as well as monitoring the implementation of the
right to freedom of expression and freedom of the media in accordance
with international standards.
5. The Special Rapporteur urges the government to respect the right
of Malaysians to hold peaceful demonstrations and assemblies and to
adhere to international standards on the use of force against
demonstrators.
6. The government is encouraged to align its national law with the
provisions of international law relating to freedom of opinion and
expression, in particular by introducing more explicit national
legislation to facilitate the attainment of a proper balance in the
judiciary’s efforts to protect human rights in general and the right to
freedom of opinion and expression in particular.
7. The Special Rapporteur strongly encourages the government of
Malaysia to take all necessary steps to sign and ratify the
International Covenant on Civil and Political Rights, as well as its
Optional Protocols.
8. Finally, the Special Rapporteur recommends that the government
give serious consideration to the establishment of an ombudsman's office
and of a special commission for human rights or a separate ministry for
human rights.
The government has thus far made some improvements on some of the
recommendations made by Abid Hussain, i.e. the repeal of the annual
licensing for newspapers. However, many of the recommendations are still
being ignored; particularly point 5 where the government is urged to
respect the right of Malaysians to hold peaceful demonstrations and
assemblies and to adhere to international standards on the use of force
against demonstrators. Until today, demonstrations despite of what form
it takes are still deemed as illegal.
In addition to the Special Procedures mechanism, Malaysia has also
made its human rights commitment at the international level through the
UPR mechanism. The UPR is a review of countries’ human rights records
and Malaysia was being reviewed for the first time on February 11, 2009
during its fourth session. So basically the UPR is an inter-governmental
process, whereby the states are judging states.
At the UPR back in 2009, Malaysia’s national report was presented by
Tan Sri Rastam Mohd Isa, whom at that time, the Secretary General of the
Ministry of Foreign Affairs. During the UPR process, Malaysia received
numerous recommendations from other member states. These recommendations
are the final results of the UPR process, and are included in the final
report. Although the recommendations are not binding, they act as a set
of commitments by the state to improve the protection and promotion of
human rights in their country. These recommendations will serve as
benchmarks to the state, on what it must achieve until the next UPR
cycle.
At that time, Tan Sri Rastam clarified that the government had
received acknowledgment in the reports of the relevant Special
Rapporteur of the HRC. He added that the Malaysian delegation was ready
to share further information with the HRC and members. He also said that
Malaysia would remain open to further discussions with the various
Special Procedures on the proposed visits and was willing to consider
such requests positively on the merit of each proposal.
Nevertheless, the government doesn’t seem to walk the talk. Apart
from the current offer by La Rue, there are several other outstanding
requests from Special Rapporteurs whose mandates cover critical areas
for human rights protection in Malaysia. These would include for
examples, visits by the Special Rapporteurs on human rights defenders,
indigenous people, freedom of religion, migrants, and independence of
judges and lawyers.
Despite the obligation on government to protect and promote the human
rights, Malaysia continues to brush these concerns aside. It is indeed
contradictory for Anifah Aman to come up with such a response on the
offer made by La Rue. The Foreign Affairs Minister should have been more
sensitive and aware of the promises made by the government in the
international level particularly in view of the next UPR review in 2013.
* Khoo Ying Hooi is an academic member of staff at University
Malaya. She is also a PhD candidate in the Department of Government and
Civilisation Studies at the University Putra Malaysia. Her current
research focuses on the civil society movement in Malaysia. She can be
contacted at yinghooi@gmail.com.
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